Anticipated challenge to veggie-libel law cracks as Ohio egg company drops suit

Buckeye Egg Farm's decision to drop its libel lawsuit against the Ohio Public Interest Research Group and its director is welcome news but disappointing, says the group's attorney.

First Amendment attorney David Marburger said that the egg producer's announcement on Monday “was primarily good because PIRG and director Amy Simpson's interests are paramount, but it's also disappointing because we were poised to persuade the judge to declare the state's food-disparagement law unconstitutional.”

In 1996, Ohio passed a food-disparagement—or veggie-libel—statute allowing farmers to sue people for unfair criticism of their products. Thirteen states have passed such laws in order to give agriculturists a chance to fight back against negative publicity about their products. Marburger calls the law “overkill, an over-reactive statute that has a lot of constitutional infirmities.”

The Croton, Ohio, egg producer sued Simpson and PIRG under that law in March 1997 after being accused of re-packaging and re-dating old eggs. The statement which most upset Buckeye—”We have no idea how many, if any, have been made ill from these eggs”—was made by Simpson during a news conference announcing PIRG's filing of a consumer action suit against the company. That suit over whether Buckeye's egg expiration dates are reliable or deceptive has yet to go to trial.

Buckeye's case against PIRG and Simpson would have been the first test of the law. However, an attorney for the company filed a one-page motion last week in Franklin County Common Pleas Court in Columbus, saying the company had concluded it was not worth the effort to pursue the lawsuit.

According to Marburger, the Buckeye case received a great deal of attention as a result of Texas beef ranchers' veggie-libel lawsuit against talk show host Oprah Winfrey.

In that state lawsuit, the judge ruled that Texas' food-libel statute did not apply; she did not rule on the constitutionality of such laws. “We thought our case would have been the first” to test veggie-libel laws' constitutionality, Marburger said.

Ronald K.L. Collins, director of the Foodspeak Coalition, said that the Buckeye situation “makes the Oprah case pale in comparison.”

“It's hard to imagine a case more egregious than this one,” Collins said. “Neither PIRG nor Simpson were in a position to litigate the case. They don't have the funds that Oprah does.”

The Foodspeak Coalition is an alliance of 32 consumer, civil liberties and journalism organizations that formed in April to campaign for repeal of food disparagement laws.

“We believe that Simpson's statements are what the First Amendment is all about,” Collins said. “These are statements about an important interest: food safety.

“If the citizen critic who's concerned about food safety has to be worried that a big company represented by a big law firm is going to come after [him or her], that intimidates citizens to the point where they self-censor,” Collins said.

In May, Foodspeak wrote a letter asking Buckeye to dismiss their suit against PIRG and Simpson. Now that the company has done so, Collins admits to feeling a little disappointed.

“We would have liked to test the constitutionality of this law,” he said. “This is the best libel case since New York Times v. Sullivan. It's a matter very much in public interest. It goes right to the heart of the First Amendment.”

Collins added: “In all of these states where [food-libel] laws exist, anyone can become an Amy Simpson.”

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THE EXPERTS

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

About The First Amendment Center

We support the First Amendment and build understanding of its core freedoms through education, information and entertainment.

The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.

Founded by John Seigenthaler, the First Amendment Center is an operating program of the Freedom Forum and is associated with the Newseum and the Diversity Institute. The center has offices in the John Seigenthaler Center at Vanderbilt University in Nashville, Tenn., and at the Newseum in Washington, D.C.

The center’s website, www.firstamendmentcenter.org, is one of the most authoritative sources of news, information and commentary in the nation on First Amendment issues. It features daily updates on news about First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues. Support the work of the First Amendment Center.

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1 for All is a national nonpartisan program designed to build understanding and support for First Amendment freedoms. 1 for All provides teaching materials to the nation’s schools, supports educational events on America’s campuses and reminds the public that the First Amendment serves everyone, regardless of faith, race, gender or political leanings. It is truly one amendment for all. Visit 1 for All at http://1forall.us/

Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

This site no longer is being updated … And the competition itself is moving to Washington, D.C., where the Newseum Institute’s First Amendment Center is co-sponsoring the “Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition,” March 18-19, in partnership with the Columbus School of Law, of the Catholic University of America.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

FIRST AMENDMENT CENTER ARCHIVES

State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
See the reports.